SZNCQ v Minister for Immigration
[2009] FMCA 491
•14 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 491 |
| MIGRATION – RRT decision – Indian claiming persecution for support of Sikh political parties – disbelieved by Tribunal – no procedural error in failure to take evidence from proposed witnesses – no other jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 426, 426(3) |
| Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 |
| Applicant: | SZNCQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 4 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 14 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 4 of 2009
| SZNCQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This case has an unfortunate and protracted history, due to the setting aside of two previous decisions of the Refugee Review Tribunal. However, in my opinion, the most recent decision of the Tribunal exhibits a very thorough and genuine reconsideration of a case involving difficult decisions of credibility, and requiring a careful assessment of country information and of the applicant’s evidence given over many years. I have not been able to identify jurisdictional error allowing the matter to be remitted again to the Tribunal.
The applicant came to Australia in November 2000. On 22 December 2000 he applied for a protection visa, assisted by a migration agent. In all the proceedings subsequent to his application he has been further assisted by agents, who have sought actively to present his case.
The present Tribunal decision which I am reviewing, summarised accurately the claims which were briefly sketched in the visa application, explaining why the applicant sought protection against return to India:
23.The applicant claimed to fear the authorities, Hindu Fundamentalists, such as Shiv Sena and “all other political workers who hate Sikhs and the Khalistan Liberation Movement” for the reason of his membership of Sikh groups fighting for the liberation of “Khalistan”. He claimed to have been an active member of the Khalistan Liberation Movement through the Sikh Students’ Federation (SSF) and the Khalistan Commando Force (KCF). The KCF and a few other “forces” came under the umbrella of Akali Dal (MAN). He claimed that he was “actively” involved in the KCF activities and provided different types of assistance to the members of the KCF. His involvement with these organisations was disclosed to the Indian authorities forcing him to leave India and move to the UAE. He claimed that any KCF member whose identity was disclosed to the authorities had to be “undergrounded or depart India for the security of KCF”. While he was living in the UAE he visited India “every now and then” and assisted the KCF by giving donations. He also arranged visas, travel documents, accommodation and jobs for the KCF members “who had to flee India to avoid persecution”.
24.In a submission dated 20 December 2000, the applicant’s then representative repeated the essence of the applicant’s claims and added that upon the applicant’s return to India in October 2000 he was informed by his family that the police were looking for him and he was told not to go to Punjab and therefore he arranged to depart India from Mumbai. He arranged to obtain an Australian visa in the UAE as he was told by his fellow members that he might need to flee India at anytime and he might be at risk in the UAE. Once he reached India he found himself in “critical circumstances” and if he had not left India he would have been arrested.
The applicant did not present any evidence to the Department of Immigration in support of his visa application, and the delegate refused the application on 23 February 2001. The delegate referred to country information suggesting that “the era of Sikh militancy has passed, and that Sikhs are no longer persecuted in India”, and also referring to the applicant’s ability to re‑enter India at will and have his passport lawfully reissued under his genuine identity. The delegate said that this indicated that “he has not been identified by the Indian authorities as a high profile militant leader or suspected terrorist”. The delegate also thought that his travel back to India on several occasions from the UAE after going there to work in 1987, indicated that his claimed fear of persecution at the hands of the Indian authorities was not genuine.
The delegate’s findings identified issues which continued to face the Tribunal on review. The applicant maintained his general claims, which he presented in the course of hearings conducted by the Tribunal. These were held on 9 May 2002 by the Tribunal as first constituted, on 22 November 2006 by the Tribunal as second constituted, and by the presently constituted Tribunal on 13 August 2008 and 17 September 2008. The present Tribunal member said that he listened to the tapes of the earlier two hearings, and, indeed, he presented a more detailed description of the evidence given at those two hearings than appears in the earlier two decisions. For this reason, as well as many other reasons, it is clear to me that the present Tribunal member did not take shortcuts by adopting narratives or findings made by earlier Tribunal members.
According to the Tribunal’s description, the two hearings held by the present Tribunal member involved very thorough questioning of the applicant on pertinent matters, and an extended and careful presentation to the applicant of matters of concern to the Tribunal. The latter occurred after an adjournment of the hearing. In particular, on the first day of the hearing, the Tribunal put to the applicant all of the important recent country information found by the Tribunal, and then on the second day put to him various conclusions which the Tribunal foreshadowed it might draw from that information. It is clear to me that the natural justice grounds which had resulted in the two previous Tribunal decisions being set aside were not repeated in the present rehearing.
The applicant presented a number of documents through his agents. Most of these were references from people about the applicant’s conduct in Australia, which had no bearing on the matter. Additionally, in 2002 his then agent presented to the Tribunal a letter dated 3 January 2001 in English from a person who was identified as “chief spokesman and secretary” of a branch of the Shiromani Akali Dal party. This largely contained general statements about the treatment of Sikh separatists. In relation to the applicant’s own circumstances, it said only at the start of the statement:
This is to state that [SJ] Resident of [Village] & [District]. The Punjab (INDIA) is an active member of the Shiromani Akali Dal a political party which is fighting for the human rights of the Sikhs and carring out a peaceful struggle for the freedom of the Sikh people. Due to police harassment his brother [the applicant] has fled India because his life is in danger and if he return will be tortured and later killed in a fake encounter.
A document purporting to corroborate his membership of one of the organisations identified by the applicant was also submitted, and otherwise the applicant submitted no further documents in corroboration of his own political involvement and activities until after all the hearings held by the Tribunal.
In response to the presently constituted Tribunal’s invitations to attend its hearing and adjourned hearing, the applicant completed “response to hearing invitation” forms which identified witnesses who the Tribunal was requested to interview. The applicant’s agent referred to two people, being Mr Mann, the leader of the Akali Dal Mann party, who was said to have “personal knowledge of this matter and can confirm the truth of the claims”, and an unnamed “general secretary of Akali Dal, Mann”, who “also has personal knowledge of this matter and can confirm the truth of the claims”.
It appears from the hearing record that at the hearing on 13 August 2008, Mr Mann was not available on the telephone in India. The Tribunal said that it adjourned the hearing “due to time constraints”, and I note that its questioning of the applicant had lasted for about four hours with a break in the middle.
The applicant’s response to the adjourned hearing again identified the two proposed witnesses, Mr Mann and the general secretary. The date of this hearing was adjourned several times, due to requests by the applicant’s agent to appoint a time when these witnesses could be available by telephone from India. It was ultimately held on 17 September 2008. The Tribunal’s records indicate the Tribunal clerk was given the names of both of the people as potential witnesses with their telephone numbers.
Although the applicant was given the recordings of that hearing, he has not tendered a transcript, and it is difficult for me to know precisely what was said in relation to the applicant’s request for evidence to be taken from these two witnesses by telephone. The Tribunal said in its statement of reasons
129.The Tribunal noted his request for the Tribunal to take evidence from two witnesses in India via telephone. The Tribunal informed him that it was not obliged to take evidence from his witnesses in this manner and that he was welcome to provide written statements from any witnesses. The Tribunal noted that the applicant has had ample opportunity to provide evidence in support of his case since he first lodged his application for a protection visa. Nevertheless, he was given two weeks to provide written submissions or any other additional information.
This paragraph appears at the end of a very lengthy description by the Tribunal of the evidence it had taken from the applicant personally at the second hearing about his claims, in the course of which it is clear that the Tribunal identified many of the concerns which it subsequently discussed in its statement of reasons.
The Tribunal did not explain its decision not to take evidence from the two offered witnesses, but it is not expressly required by statute to provide reasons for procedural decisions when writing its statement of reasons for its substantive decision. I think it likely that the Tribunal explained its refusal to take evidence on the telephone more fully in the course of the hearing, than is sketched in the above paragraph. The Tribunal may have had in mind the fact that the applicant had not presented to the Tribunal at any stage before the hearing, witness statements nor any other identification of the evidence which was expected to be able to be taken from these witnesses. The Tribunal would have been in a very difficult position in relation to framing its questions and testing the witness’s evidence, in circumstances where it was given no time to reflect on how to do this, even if it could have been satisfied as to the identity of a witness at the end of a telephone call to India. I shall consider further below the applicant’s complaints about the Tribunal’s decision not to take evidence from these two proposed witnesses.
In post‑hearing submissions to the Tribunal, the applicant’s agent complained about the Tribunal’s decision not to take evidence from the two witnesses, and also sought an extended time to obtain witness statements from them, beyond the two weeks originally given by the Tribunal. The Tribunal described this correspondence in its statement of reasons:
133.On 20 October 2008 the applicant’s representative submitted in writing that Simranjit Singh Mann was available to be interviewed on three occasions, but the Tribunal did not call him. He submitted that he believed that “this was 100% wrong as from my understanding the witness would overcome the above‑named client’s problem of character issues” and verify that he had “collected funds from overseas and returned these funds to India for people who were in need of financial assistance”. He conceded that the Tribunal had allowed the witness to make a statement, but stated that this had not been possible “as the witness has had other pressure on his time and to date has been unable to prepare a statement”.
It is clear, that the Tribunal in fact allowed the applicant far longer than two weeks to present witness statements corroborating his claims about his activities in India, including from the suggested witnesses. He did, in December 2008, present to the Tribunal very poor facsimile copies of a seven‑page signed statement on Indian letterhead, purporting to be signed by Mr Mann as president of the Shiromani Akali Dal (Amritsar). This essentially recounted Mr Mann’s own personal experiences of harassment by the government of India in earlier years, and in particular in 2005, 2006 and 2007, and also explained his party’s policies in relation to Indian affairs. The document only referred to the applicant in its opening paragraph:
This is to state that [the applicant] resident of [Village & Post Office] & [District]. Punjab (India) now residing in [an address in NSW, Australia]. He is a permanent member of Shiromani Akali Dal (Amritsar), the Sikh political party which is struggling peacefully and democratically for the freedom of the Sikh peoples. If [the applicant] returns to India he will be persecuted by the state. [The applicant] can also be falsely involved in a criminal case, detained illegally and even eliminated in a fake police encounter, as has happened in the case of many a party worker. As such I would recommend that [the applicant] be given political asylum as per the just and liberal laws of your country and in accordance with the U.N. charter.
The Tribunal later received very poor reproductions of the press cuttings and other documents which are referred to in the body of the witness statement, none of which related to the activities of the applicant.
The Tribunal did not make any inquires, nor appoint any further hearings after receiving this material, but made its decision on 9 December 2008. It affirmed the delegate’s decision which had been made in 2001.
As I have indicated above, it carefully identified, recited and summarised all the evidence before it, including recounting the course of four hearings attended by the applicant over six years, and the subsequent exchanges with the applicant’s agent.
Under the heading “Findings and Reasons”, the Tribunal recognised the difficulties of proof faced by applicants for refugee status. In subsequent paragraphs it acknowledged the difficulties facing applicants who give evidence to the Tribunal over a period of years. It expressly took this consideration into account at various points, and in its concluding summary of findings. Its opening and concluding findings were:
147.The applicant did not impress the Tribunal as a credible, truthful or reliable witness. In the Tribunal’s view, his overall evidence cast serious doubt on the veracity of his claims. In reaching this view the Tribunal has had regard to the inconsistencies within the applicant’s own evidence at various stages; inconsistencies between his evidence and independent evidence before the Tribunal; and other reasons detailed below.
…
179.For the reasons outlined above, the Tribunal did not find the applicant to be a credible witness. The totality of his evidence shows a propensity to shift and tailor evidence in a manner which achieves his own purpose. In analysing the various inconsistencies in the applicant’s evidence throughout the process the Tribunal has been cognisant of the combined effect of delay, and the disadvantage to the applicant of having to repeat a detailed account of past mistreatment. The Tribunal accepts that while some aspects of the applicant’s evidence may have been affected, the inconsistencies and the fundamental shifts in the applicant’s claims, as outlined in the Tribunal’s reasons above, were such that cannot be explained by reference to delay and repetition of claims over a period of time.
The intervening paragraphs discussed the applicant’s evidence under relevant topics, and explained why it found the applicant’s evidence unpersuasive in relation to his claims, leading it to reject all of the material points which the applicant had raised as giving rise to a fear of persecution if he returned to India.
The Tribunal referred to the applicant’s inconsistent evidence regarding “the reasons behind and the circumstances surrounding his departure from India in 1987”. It identified parts of his evidence which showed a “willingness to improvise evidence and introduce new claims” about this. It identified a new claim which had been made in the course of his evidence, in which the applicant said that his father had been detained and tortured by authorities for 20 days shortly before he left or shortly afterwards. The Tribunal said that it did not accept “that the applicant had simply forgotten to raise such a potentially important claim”. The Tribunal identified other similar problems with the applicant’s evidence on this topic. It also identified difficulties with his evidence that he had been wanted by the police in India before he left.
In relation to his evidence about returning to India over the years that he had worked in the UAE, the Tribunal referred to evidence he had given to it, but not to earlier Tribunals, showing that indeed he had spent “extended periods of time in Punjab” in periods that he returned to India. The Tribunal thought that his evidence about these visits was problematic. It said: “in the Tribunal’s view, the applicant would not have returned to India, Punjab and his own village, albeit at night time as claimed, as frequently as he did, if he was fearful of the authorities”.
The Tribunal closely examined his evidence seeking to explain why he obtained an Australian visa in the UAE, before returning to India and then coming to Australia. This conduct appeared inconsistent to the Tribunal, if some of the things he had told the Tribunal were true.
The Tribunal considered the applicant’s evidence about his membership of pro‑Khalistan groups and his related activities. The Tribunal referred to the two letters which had been presented from officials of the Shiromani Akali Dal (“SAD(M)”), and said:
164.… the Tribunal is prepared to accept that he was an ordinary member of SAD(M) and that he holds pro‑Khalistan views. The Tribunal notes that, apart from the mere mention that the applicant is a member of the party, neither letter make any references to his activities or profile. The omission in Mr Mann’s letter was acknowledged by the applicant’s representative in his submission of 27 October 2008. In the Tribunal’s view, if the applicant was a key member of SAD(M) and involved in the activities he claims to have been involved in, his party leadership would not have neglected to mention this in their letters, which appear to have been provided after being instructed to do so by the applicant (see the applicant submission of 27 October 2008 to the effect that Simranjit Singh had “misunderstood what he was to write in the letter”).
The Tribunal referred to evidence given by the applicant about the KCF, which was inconsistent with country information characterising it as a militant terrorist organisation. It also referred to his evidence about his claimed activities for another organisation, as being “vague, unconvincing and riddled with inconsistencies”. It discussed his evidence of taking money from the UAE to India to assist these organisations, and said:
165.The applicant’s description of his activities cast further doubt on his claim to have been a “key member” of SAD(M). The applicant stated that he was involved in collecting and transporting money and people, participating in demonstrations and making others aware of “atrocities” committed by the Indian authorities. A significant part of the applicant’s claims, however, was his involvement in the collection and transportation of money, particularly transportation of cash from the UAE to India. The Tribunal found the applicant’s evidence in this regard vague, unconvincing and riddled with inconsistencies. Throughout the process, the applicant has put much emphasis on his role in transporting money from the UAE to India in order to highlight his profile and stress the authorities’ interest in him. However, at the third hearing the applicant changed and shifted his evidence as to how he had transported money from the UAE to India and was unable to provide any meaningful details as to how the money was disbursed in India. When he was initially asked how much money he took back to India with him on his return trips, he said on average he took about Rs 15 Lakh with him (Rs 1,500,000). When the Tribunal noted that this was a large amount of money and asked him how he had managed to carry the money, he said the money was transferred through hawala. When the Tribunal noted that this meant that he was not physically taking cash with him to India, he shifted his evidence by claiming to have been responsible for distributing the cash in India. When he was pressed as to why he had to go back to India to oversee the distribution of the cash when others could have seen to this, the applicant again changed his evidence by stating that if the amount of money collected was smaller, he personally took the money to India. When asked how he was able to carry the cash back with him without being detected, he said he was assisted by agents. However, he was unable to provide any meaningful details as to how he had been assisted by these agents. When it was put to him that it appeared that he did not have any knowledge of how the cash was transported, he made no specific comments other than to say that agents had made arrangements for the safe arrival of the cash.
The Tribunal explained that it also found his evidence about distributing money in India “vague and bereft of meaningful details”, although plainly the Tribunal had sought to give him opportunity to explain the details of this.
The Tribunal said that for all the reasons it had explained, it had formed the view that “the applicant has significantly exaggerated his role and activities in the past and is satisfied that he was not involved in any activity or activities in SAD(M) that gave him a significant political profile or brought him to the attention of the authorities”.
The Tribunal then addressed country information about the risks facing ordinary members or supporters of the SAD(M) party in the Punjab, and drew a conclusion from all that evidence that there was “little recent evidence suggesting” that ordinary members “are being targeted for arrest or other forms of mistreatment by police”. The Tribunal drew strength for that conclusion, by referring to the applicant’s evidence about a brother who had been a member of SAD(M), and had stayed in his home village. The Tribunal said:
170.Whilst some sources have suggested that members of SAD(M) are harassed and/or arrested “at certain times” for participating in party activities (Immigration and Refugee Board of Canada, 2008, ibid), as it was put to the applicant at the fourth hearing, the weight of opinion before the Tribunal favours the view that members of the SAD(M) are not generally ill‑treated, unless suspected of terrorism or violent activities (US Citizenship and Immigration Services 2003, IND03004.ZSF, ibid; and Immigration and Refugee Board of Canada, 2008, ibid). This is evidenced by the fact the situation of the applicant’s brother, who is a member of the SAD(M), as attested in Mr Tiwana’s letter, and continues to live in the applicant’s village. The applicant did not claim and there was no evidence before the Tribunal to suggest that his brother was ever approached, let alone harmed by the authorities. The Tribunal has considered the applicant’s claim that the government was not interested in his brother because he is sick. However, apart from the fact that he did not claim that his brother has been perpetually ill, if his brother’s involvement with the party was an issue for the authorities, his illness would not have prevented them from approaching, interrogating or even arresting him. The Tribunal is of the view that the authorities were not interested in his brother because he is an ordinary member of the SAD(M) and this is consistent with the view that SAD(M) members are not generally ill‑treated. Having considered all the evidence before it, the Tribunal is satisfied that the applicant’s chance of facing serious harm as an ordinary member of SAD(M) to be remote.
The Tribunal referred to the submission by the applicant’s representative that Mr Mann would have given evidence about the applicant’s political activities. It said:
172.The Tribunal has considered the applicant’s representative submission of 27 October 2008 that “from memory” “at one time a few years ago, all party officials and many other members were detained”. As noted above, no reliable evidence was submitted to support the representative’s vague recollections. The Tribunal has also considered the applicant’s representative’s contention that Mr Mann did not address many of the points that could have been put to him had the Tribunal called him. However, as it was pointed out to him at the fourth hearing, the Tribunal was under no obligation to call Mr Mann. The applicant has had ample opportunity, over a period of eight years, to provide evidence in support of his claims. The fact that such evidence was not provided or what was provided was not worded in the exact manner the applicant had hoped for did not create an obligation on the Tribunal to call his witnesses overseas. Both Mr Tiwana and Mr Mann had stated in their respective letters that the applicant would be persecuted if he were to go back to India. Whilst Mr Tiwana had referred to the persecution of high profile members of the party, Mr Mann, as indicated above, had referred to his own experiences as the leader of the party. None had referred to the persecution of ordinary members of SAD(M). It is therefore difficult to determine on what basis they have both contended that the applicant would be persecuted upon returning to India. The Tribunal prefers the independent country information referred to in paragraphs 169‑171 above and is satisfied that as an ordinary member of SAD(M) the applicant’s chance of facing harm in India is remote.
The Tribunal addressed the other elements of the applicant’s claims pointing to his claimed involvement in organisations other than SAD(M), and to other persons as potentially a threat to him if he returned, and it explained reasons for forming the opinion that there was not a real chance of any of these harms occurring. The Tribunal therefore concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal for a further reconsideration. I have power only to do this if its most recent decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa. I do not have power myself to make any decisions in relation to the applicant’s residence in Australia.
The applicant has set out six grounds of his application, and has not filed any further amended application or written submissions which present additional arguments or explain the grounds which are contained in his application. He did file a submission which points to his activities in Australia, and tenders personal references about these. However, they have no relevance to the issues which I must decide.
The grounds of the application are:
1.The Tribunal erred by not allowing two witnesses to give evidence before the Tribunal during the hearing.
2.The Tribunal erred by concluding that it would not be possible to carry some $50,000 into India without any evidence to verify the conclusion.
3.The Tribunal erred by not considering evidence that members of the Akali Dal Mann, such as the Applicant had been arrested and tortured in recent year and that there is still a risk of harm to active party members.
4.The Tribunal erred by considering that the lack of claims of harm to the Applicant’s brother was evidence that the Applicant would not be harmed and offset independent evidence that members of the Akali Dal Mann are at time harassed by the Indian Authorities.
5.The Tribunal erred by deeming that by answering questions not previously put to the Applicant was evidence against the Applicant’s credibility as a witness.
6.The Tribunal erred by taking statements made by the Agent as evidence against the Applicant’s credibility.
Initially, the applicant had no oral submissions to make to explain these grounds. However, after counsel for the Minister went through them in detail in his oral submissions, the applicant addressed me in reply in relation to some of the grounds. I have taken into account all of his submissions to me.
In relation to Ground 1, I have narrated the background to the Tribunal’s decision not to take evidence from the two witnesses by telephone from India, and how it assessed the statement from one of them which emerged after the hearing. Whether its procedures revealed jurisdictional error may be addressed by reference to two obligations on the Tribunal, although they clearly overlapped. These are its statutory obligations under s.426, and a general obligation to afford procedural fairness which bound the present Tribunal.
Section 426 of the Migration Act 1958 (Cth), confers the express right on an applicant prior to attending a hearing to invite the Tribunal to take evidence from a witness. It provides:
426Applicant may request Refugee Review Tribunal to call witnesses
(1)In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
As is clear in s.426(3), the Tribunal is not obliged to comply with a request by the applicant to take evidence from a proposed witness. Its obligations have been considered in many cases, and I was referred in particular to the judgment of Bennett J in Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 which addressed a similar obligation on the Migration Review Tribunal. Her Honour’s discussion of authorities and relevant statutory provisions is found in [52]‑[62]. As her Honour points out, although the Tribunal is not obliged to take evidence, it is obliged to consider the request with more than “a superficial acknowledgment”. In the case before her Honour she was satisfied that the Tribunal had “genuinely applied its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individual in accordance with the applicant’s wishes”.
In the present case, it is clear to me that the present Tribunal also did apply his mind to that issue, and there is no evidence before me suggesting that genuine consideration was not given to the applicant’s request. Although a full explanation of the Tribunal’s procedural decision is not found in its final statement of reasons, sufficient emerges to point to a consideration of relevant discretionary matters in relation to the potential taking of evidence by the Tribunal. As I pointed out above, the Tribunal was in a difficult position to embark on questioning the two proposed witnesses, since it had no indication of the evidence which it was being invited to elicit from the witnesses. In my opinion, it was certainly open to the Tribunal to have formed the view in the present case, that it would not be appropriate for it to exercise its power to ask questions of witnesses by telephone, in the absence of a witness statement or other indicator of the nature of the evidence which it was suggested it could obtain from the proposed witnesses.
The applicant was clearly told that the Tribunal was of this mind, and given an opportunity to present witness statements. He made some attempts to obtain witness statements. However, the Tribunal properly identified the limits of the one statement which ultimately emerged. In my opinion, its assessment of that statement, and the earlier similar witness statement, reveals no error of law or jurisdictional error. It also implicitly explains why it did not feel it necessary to inquire further into what additional evidence might be given by the proposed witnesses. No jurisdictional error arises from this omission. It is only in exceptional cases that the Tribunal comes under obligations to conduct its own inquiries in relation to additional evidence which might be obtained from a witness presented by an applicant, and generally it is under no obligation to do more than assess the evidence in its terms presented by an applicant (see the recent discussion of authorities in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [77] and Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at [110]).
I am therefore not satisfied that there was any failure by the Tribunal to exercise the discretion conferred on it in s.426(3) as discussed by Bennett J in Katisat.
Nor do I consider that any breach of obligations of procedural fairness occurred in the Tribunal’s procedures in relation to the taking of evidence from the proposed two witnesses. It is clear that in the present case the Tribunal was under such general obligations independently of any particular statutory duties, since s.422B did not apply, although the content of those obligations may be affected by the provisions of s.426.
The Full Court discussed natural justice obligations in relation to the taking of evidence by a Tribunal in VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178, and I would apply its analysis to the present case. The applicant was aware that the Tribunal was not bound to take the requested evidence from witnesses, and that it had invited witness statements. It was open to the Tribunal to conclude that nothing more would be forthcoming from the proposed witnesses, when an unhelpful statement was tendered. Moreover, in the absence of any indication in the evidence before the Tribunal, or now before the Court, as to what evidence is claimed to have been available from Mr Mann and the other witness on the telephone, going beyond the statement which was later given to the Tribunal, I am not satisfied that any practical injustice resulted to the applicant from the Tribunal’s procedural decision (cf. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]‑[38], [106], [122], [149]).
I am therefore not persuaded that Ground 1 in the application has established any jurisdictional error.
Ground 2 is based upon a misconception of the Tribunal’s reasoning in paragraph 165, extracted above, in which the Tribunal discussed the applicant’s evidence about his claims to have brought money back to India from the UAE. It is clear from that discussion that, in fact, the Tribunal did not base its adverse view of the applicant’s evidence upon an opinion that it was not possible “to carry some $50,000 into India without evidence to verify the conclusion”. Its reasoning was based upon inconsistent evidence given by the applicant about his money transfer activities. That reasoning was, in my opinion, clearly open to it on the applicant’s evidence. I therefore can find no jurisdictional error raised by the contention in Ground 2.
Ground 3 is unparticularised in its contention, and the applicant has not been able to give it substance in his submissions to me. Counsel for the Minister attempted to do so, but I do not think that he was able, unaided by the applicant, to give meaningful content to Ground 3.
If it is understood as a contention that the Tribunal overlooked relevant evidence of a background nature concerning Akali Dal Mann, neither counsel for the Minister, nor I, have been able to identify any such evidence which is not referred to in the course of the Tribunal’s careful reasons. It is plain that it researched that matter, found relevant evidence, and took it into account. I can detect no jurisdictional error made by it when it did that.
Ground 4 appears to challenge the Tribunal’s reasoning concerning the fact that the applicant’s brother, who was said to have been a member of SAD(M), had remained in India, and had not been ill‑treated. I have above extracted the Tribunal’s reasoning at paragraph 170. The contention made in Ground 4 about this reasoning is obscure to me. I can find no error made by the Tribunal in its reference to that evidence about the brother. The point made by the Tribunal was pertinent, and it was open to the Tribunal to consider that it reinforced its opinion about the effect of the general country information, concerning the lack of interest of the police in ordinary members of that political party.
Ground 5 is unclear. Doing the best I can, I think that the applicant is complaining that the Tribunal as presently constituted asked the applicant many more detailed questions than he had previously been asked, and then based its conclusions about his credibility upon his responses. If that is his complaint, then in my opinion it reveals no jurisdictional error, but indeed shows a Tribunal performing its duty to review the delegate’s decision in a careful and thorough fashion.
If there is a complaint that there was some unfairness in the framing of the Tribunal’s questions, or that they revealed a closed mind, then this complaint has not been clearly made. There is certainly no evidence before me giving support to any contentions of apprehended or actual bias.
I am unable to identify any other contended or established jurisdictional error raised by Ground 5.
Ground 6 is also obscure in its particulars. Counsel for the Minister suggested that it might be challenging how the Tribunal dealt with statements made by the applicant’s representative to the Tribunal at a hearing, to which it referred in paragraph 172 extracted above. I would not draw that conclusion unaided by submissions by the applicant. There were, it appears, other statements made by the applicant’s representative to which the Tribunal referred elsewhere, and other statements were probably made by the agent, to which it did not refer. In the absence of meaningful submissions, I am unable to find that Ground 6 raises any jurisdictional error, nor that any jurisdictional error can be found by reference to it.
For the above reasons, I have not been satisfied that any of the grounds raised by the applicant establish jurisdictional error. I have carefully considered the course of the Tribunal’s hearing and its reasons for myself, to consider whether any other jurisdictional error might arise which this unrepresented applicant was unable to identify. However, I am satisfied that the present Tribunal’s decision is not affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 4 June 2009
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